President Clinton's Assault upon Law and Justice:

Some Informed Observations on the Presence of "President Arafat" at the White House

By Louis Rene Beres
Professor of International Law, Purdue University

Nullum crimen sine poena! "No crime without a punishment." This major
principle of law, essential to civilized international relations, obligates all states -
but especially a global superpower - to seek out and prosecute the perpetrators
of crimes of war, crimes against peace and crimes against humanity. Today this
obligation extends as well to crimes of terrorism. It is more than a little ironic,
therefore, that Yassir Arafat, during the first week of October 1996, was hosted
ceremoniously by the President of the United States at a summit with the Israeli
Prime Minister. Understood in terms of international law, in particular Article 53 of
the Vienna Convention on the Law of Treaties, this formal welcome represented
a clear assault upon elementary principles of justice. Conflicting with what
international lawyers call a "peremptory" or jus cogens norm, the principle of "no
crime without a punishment," this indecent event should not have taken place.
Instead, United States authorities were obligated under national and international
law to arrest and prosecute Yassir Arafat.

Why, exactly, did the United States have such a responsibility? The answer lies
in pertinent facts concerning Arafat's particular role in terrorist crimes and in
applicable rules of law. Regarding facts, the criminal record of Arafat's Fatah
branch of P.L.O. is well documented. For example, on March 5, 1975, eight
members of Fatah attacked the Hotel Savoy in Tel-Aviv, a terrorist assault that
left eight hostages killed, including a Dutch boy of fifteen, a German national, a
Swiss citizen, and a Somali. The Fatah group's objective, according to the
operation's leader, was to sabotage talks between Israel and Egypt that were
about to get underway.

On November 13, 1975, a twenty-three pound bomb exploded in front of a
Jerusalem coffeehouse, killing seven and injuring forty. Yassir Arafat's Fatah
claimed credit, saying that it was "commemorating" their leader's U.N. address of
the year before. Also being celebrated by the terrorist attack was the passage of
three pro-Palestinian resolutions in the United Nations, including the "Zionist =
Racism" statement.

On March 11, 1978, Fatah terrorists used a raft to land on a northern coast Israeli
beach, seized a tour bus filled with women and young children, and left forty-six
dead and eighty-five wounded before being stopped. Earlier in the operation,
before taking the bus, the terrorists shot and killed an American woman walking
on the beach. Thereafter, halting a taxi, they killed all passengers, later justifying
the multiple murders with quotes from the Koran. The operation, like so many
others, had been approved by Yassir Arafat.

After the assassination of terrorist Yechya Ayyash, known generally as "The
Engineer," Yassir Arafat delivered a eulogy in Dura, near Hebron. Speaking
before a large crowd of Hamas supporters (supporters allegedly at odds with the
Palestinian Authority), Arafat praised all "Palestinian martyrs," including those who
had murdered Israeli women and children in schools, buses and homes.
Referring to the imminent takeover of Jerusalem from "the Jews," Arafat
expressed confidence that, "../...in a few months, we will pray together at the
Al-Aksa Mosque," adding that "those who don't like it can go and drink the water
of the Dead Sea."

At a eulogy offered on June 15, 1995, for Abed Al Karim Al Aklok, a former PLO
official, Arafat remarked: "We are all seekers of martyrdom in the path of truth
and right toward Jerusalem, the capital of the State of Palestine../..../..We will
continue this difficult Jihad, this long Jihad, this arduous Jihad, in the path of
martyrs - via death - the path of sacrifice../..../.." On January 30, 1996, speaking to
forty Arab diplomats at the Grand Hotel in Stockholm, Sweden, Arafat's topic was:
"The Impending Total Collapse of Israel." Said the PLO Chief: "We Palestinians
will take over everything, including all of Jerusalem../..../..All the rich Jews who will
get compensation will travel to America." Further, "We of the PLO will now
concentrate all our efforts on splitting Israel psychologically into two camps.
Within five years we will have six to seven million Arabs living on the West Bank
and in Jerusalem../..../..You understand that we plan to eliminate the State of Israel
and establish a purely Palestinian State../..../..I have no use for Jews; they are and
remain Jews. We now need all the help we can get from you in our battle for a
united Palestine under total Arab-Moslem domination."

Conventional wisdom has it that PLO opposes Hamas and that the two terrorist
organizations are altogether different and discrete. Nothing could be further from
the truth. According to the September 1995 PLO-Hamas understanding, Hamas
commits itself to refrain from terrorism only in PLO-controlled areas. Arafat, in
turn, recognizes Hamas, Islamic Jihad, the PFLP and DFLP as a legitimate
opposition, reaffirming the predominance of inter-Palestinian solidarity over
PLO-Israel relations. Here, the observations of Yoram Ettinger, former Minister
for Congressional Affairs at Israel's Washington embassy, are instructive:

Now, regarding renunciation of the PLO Covenant commitment to Israel's
destruction, it is important to point out that such an essential doctrinal
transformation has yet to take place. The decision made by the Palestinian
National Council (PNC) on April 24, 1996 concerning the PLO Covenant does not
satisfy the obligation laid down in the Israel-Palestinian Interim Agreement (Oslo
II). The PNC did not actually amend the Covenant, but merely approved in
principle that changes would be made. No specific clauses for amendation were
identified by the PNC, no specific procedures, and no specific deadlines. To fulfil
the obligation set out in Article XXXI(9) of Oslo II, the PNC must complete the
changes by May 7, 1996.

It would appear, recalling Mark Twain, that news that the pertinent clauses of the
PLO Covenant have "died" is greatly exaggerated. According to THE
JERUSALEM POST:

&nbsp &nbsp &nbsp &nbsp &nbsp Yasser Arafat's ability to get an overwhelming
&nbsp &nbsp &nbsp &nbsp &nbsp majority of Palestine National Council members to
&nbsp &nbsp &nbsp &nbsp &nbsp support changing this seminal PLO document, and the
&nbsp &nbsp &nbsp &nbsp &nbsp vagueness of the announcement on Wednesday night
&nbsp &nbsp &nbsp &nbsp &nbsp (that the Covenant had in fact already been changed)
&nbsp &nbsp &nbsp &nbsp &nbsp served to obscure a central fact: The PNC
&nbsp &nbsp &nbsp &nbsp &nbsp resolution was no more than a decision to make
&nbsp &nbsp &nbsp &nbsp &nbsp changes in the Covenant. What precisely these
&nbsp &nbsp &nbsp &nbsp &nbsp changes will be, and what the new version will say,
&nbsp &nbsp &nbsp &nbsp &nbsp is still anyone's guess.

These are representative facts. What is the law? Consider the following: When
the victorious allied powers established a special military tribunal at Nuremberg on
August 8, 1945, they reaffirmed the ancient principle of "no crime without a
punishment." In 1946, this reaffirmation was underscored in Principle I of the
binding Nuremberg Principles: "Any person who commits an act which constitutes
a crime under international law is responsible therefore and liable to punishment."
These Nuremberg Principles were later formulated by the United Nations
International Law Commission, at the request of the General Assembly, in 1950,
stipulating: "Offenses against the peace and security of mankind../...are crimes
under international law, for which the responsible individuals shall be punished."

For the United States, the Nuremberg obligations to bring terrorist criminals to trial
are doubly binding. This is because these obligations represent not only current
obligations under international law, but also the obligations of a higher law
embedded in the United States political tradition. By codifying the principle that
basic human rights are now "peremptory," that they cannot be traded off for
reasons of political expedience or Realpolitik, the Nuremberg obligations reflect
perfect convergence between international law and the law of our American
Republic. Of course, all international law is part of the law of the United States,
an incorporation expressed by Article VI of the U.S. Constitution and by
associated Supreme Court decisions.

But what of the generic argument that international law now permits insurgent
force that is directed toward support of peremptory norms? It is certainly correct
that international law has consistently proscribed particular acts of terrorism. Yet,
it has, at the very same time, entitled insurgents to the right to use certain levels
and types of force against a regime that represses their fundamental human
rights, especially "self-determination," "independence," and "national liberation."
Isn't Fatah, therefore, an authentic national liberation movement, operating within
the bounds of permissibility under international law?

To answer this question, two criteria must be examined: just cause and just
means. These criteria allow us to distinguish a lawful insurgency from terrorism.
The principle of just cause maintains that an insurgency may exercise
law-enforcing measures under international law where an individual state deprives
the pertinent group of peremptory human rights. To qualify as lawful insurgents,
however, this group must also display appropriate respect for humanitarian
international law - i.e., just means. It follows that in order to determine whether
a particular group satisfies the requirements of a lawful insurgency, its resort to
force must be tested against the expectations of discrimination, proportionality
and military necessity. Terrorism is underway whenever the group engages in
campaigns of force directed against broad segments of the general population,
campaigns that blur the essential distinction between combatants and
noncombatants. Similiarly, the group becomes terroristic once it begins to apply
force to the fullest possible extent, restrained only by the limits of available
weaponry. This suggests that national liberation movements that fail to meet
settled and codified restraints of the laws of war are not protected as legitimate or
permissible. The ends do not justify the means. As in the case of war between
states, every use of force by insurgents must be judged twice; once with regard
to the justness of the objective, and once with regard to the justness of the means
used in pursuit of that objective.

Terrorist crimes, as part of a broader category called crimen contra omnes
(crimes against all) by the lawyers, mandate universal cooperation in
apprehension and punishment. In this connection, as punishers of "grave
breaches" under international law, all states are expected to search out and
prosecute, or extradite, individual perpetrators. According to Article 146 of the
Fourth Geneva Convention, from which this expectation is deducible:

&nbsp &nbsp &nbsp &nbsp &nbsp Each High Contracting Party shall be under the
&nbsp &nbsp &nbsp &nbsp &nbsp obligation to search for persons alleged to have
&nbsp &nbsp &nbsp &nbsp &nbsp committed, or to have ordered to be committed, such
&nbsp &nbsp &nbsp &nbsp &nbsp grave breaches, and shall bring such persons,
&nbsp &nbsp &nbsp &nbsp &nbsp regardless of their nationality, before its own
&nbsp &nbsp &nbsp &nbsp &nbsp courts. It may also, if it prefers, and in accordance
&nbsp &nbsp &nbsp &nbsp &nbsp with the provisions of its own legislation, hand such
&nbsp &nbsp &nbsp &nbsp &nbsp persons over for trial to another High Contracting
&nbsp &nbsp &nbsp &nbsp &nbsp Party concerned../..../..

It is arguable, on the other hand, that legal obligations must be understood within
broader considerations of peace, and that in cases such as this one - the case
of Yassir Arafat, Fatah terrorism and agreement with Israel - justice must yield
to pragmatism. Here, of course, the law must become a mere pawn of the
moment, and, over time, must be eroded altogether. Either international law,
which is an integral part of United States law, is to be taken seriously or it is to be
degraded for implementation of other "needs." Should it be taken seriously in the
matter before us, as indeed it must, invalid agreements with the Palestine
Liberation Organization must now be supplanted by the criminal prosecution of
Yassir Arafat within any national court. As a professor of international law living in
the "real world," I am under no illusions that this will actually happen, but I have
now at least fulfilled my responsibilities in expressing what should be done.

=================
LOUIS RENE BERES (Ph.D. Princeton) is the author of fourteen books
and several hundred scholarly articles dealing with international law. His
newest book is titled: FORCE, ORDER AND JUSTICE:
INTERNATIONAL LAW IN AN AGE OF ATROCITY (Transnational
Publishers; forthcoming).